(a) Section
7(o)(3)(A) of the FLSA provides that an employee of a public agency
which is a State, a political subdivision of a State, or an interstate
governmental agency, may accumulate not more than 480 hours of
compensatory time for FLSA overtime hours which are worked after April
15, 1986, if the employee is engaged in ``public safety'', ``emergency
response'', or ``seasonal'' activity. Employees whose work includes
``seasonal'', ``emergency response'', or ``public safety'' activities,
as well as other work, will not be subject to both limits of accrual for
compensatory time. If the employee's work regularly involves the
activities included in the 480-hour limit, the employee will be covered
by that limit. A public agency cannot utilize the higher cap by simple
classification or designation of an employee. The work performed is
controlling. Assignment of occasional duties within the scope of the
higher cap will not entitle the employer to use the higher cap.
Employees whose work does not regularly involve ``seasonal'',
``emergency response'', or ``public safety'' activities are subject to a
240-hour compensatory time accrual limit for FLSA overtime hours which
are worked after April 15, 1986.
(b) Employees
engaged in ``public safety'', ``emergency response'', or ``seasonal''
activities, who transfer to positions subject to the 240-hour limit, may
carry over to the new position any accrued compensatory time. The
employer will not be required to cash out the accrued compensatory time
which is in excess of the lower limit. However, the employee must be
compensated in cash wages for any subsequent overtime hours worked until
the number of accrued hours of compensatory time falls below the
240-hour limit.
(c) ``Public
safety activities'': The term ``public safety activities'' as used in
section 7(o)(3)(A) of the Act includes law enforcement, fire fighting or
related activities as described in Secs. 553.210 (a) and (b) and 553.211
(a)-(c), and (f). An employee whose work regularly involves such
activities will qualify for the 480-hour accrual limit. However, the
480-hour accrual limit will not apply to office personnel or other
civilian employees who may perform public safety activities only in
emergency situations, even if they spend substantially all of their time
in a particular week in such activities. For example, a maintenance
worker employed by a public agency who is called upon to perform fire
fighting activities during an emergency would remain subject to the
240-hour limit, even if such employee spent an entire week or several
weeks in a year performing public safety activities. Certain employees
who work in ``public safety'' activities for purposes of section
7(o)(3)(A) may qualify for the partial overtime exemption in section
7(k) of the Act. (See Sec. 553.201)
(d)
``Emergency response activity'': The term ``emergency response
activity'' as used in section 7(o)(3)(A) of the Act includes dispatching
of emergency vehicles and personnel, rescue work and ambulance services.
As is the case with ``public safety'' and ``seasonal'' activities, an
employee must regularly engage in ``emergency response'' activities to
be covered under the 480-hour limit. A city office worker who may be
called upon to perform rescue work in the event of a flood or snowstorm
would not be covered under the higher limit, since such emergency
response activities are not a regular part of the employee's job.
Certain employees who work in ``emergency response'' activities for
purposes of section 7(o)(3)(A) may qualify for the partial overtime
exemption in section 7(k) of the Act. (See Sec. 553.215.)
(e)(1)
``Seasonal activity'': The term ``seasonal activity'' includes work
during periods of significantly increased demand, which are of a regular
and recurring nature. In determining whether employees are considered
engaged in a seasonal activity, the first consideration is whether the
activity in which they are engaged is a regular and recurring aspect of
the employee's work. The second consideration is whether the projected
overtime hours during the period of significantly increased demand are
likely to result in the accumulation during such period of more than 240
compensatory time hours (the number available under the lower cap). Such
projections will normally be based on the employer's past experience
with similar employment situations.
(2) Seasonal
activity is not limited strictly to those operations that are very
susceptible to changes in the weather. As an example, employees
processing tax returns over an extended period of significantly
increased demand whose overtime hours could be expected to result in the
accumulation during such period of more than 240 compensatory time hours
will typically qualify as engaged in a seasonal activity.
(3) While
parks and recreation activity is primarily seasonal because peak demand
is generally experienced in fair weather, mere periods of short but
intense activity do not make an employee's job seasonal. For example,
clerical employees working increased hours for several weeks on a
special project or assigned to an afternoon of shoveling snow off the
courthouse steps would not be considered engaged in seasonal activities,
since the increased activity would not result in the accumulation during
such period of more than 240 compensatory time hours. Further, persons
employed in municipal auditoriums, theaters, and sports facilities that
are open for specific, limited seasons would be considered engaged in
seasonal activities, while those employed in facilities that operate
year round generally would not.
(4) Road
crews, while not necessarily seasonal workers, may have significant
periods of peak demand, for instance during the snow plowing season or
road construction season. The snow plow operator/road crew employee may
be able to accrue compensatory time to the higher cap, while other
employees of the same department who do not have lengthy periods of peak
seasonal demand would remain under the lower cap.
[52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987]
